Checks and Balances

The government is structured as a checks-and-balance system whereby each branch independently checks the authority of the other branches. This system prevents any branch from becoming too powerful and eroding the rights of citizens.

Below is brief description of how each branch checks the authority of the other branches.

Executive Branch Authority

Veto legislation

Selectively carry out laws

Appoint Judges

Pardoning Power

Judicial Branch Authority

Review legislation for Constitutionality

Review Executive Action for Constitutionality

Interpret legislation as it applies to specific contexts.

Legislative Branch

The Legislative Branch of government passes laws that guide the executive branch in the execution of the law.

The US House of Representatives retains the authority to impeach (bring charges against) the President for misconduct committed while in office.

Further, the US Senate has the authority to determine the merits of the impeachment and render judgment.

Congress checks the power of the Judicial Branch by passing laws that supersede or replace the existing common law developed by the judiciary.

Lastly, Congress must approve the President’s nomination of an individual for appointment to federal judicial positions, including the US Supreme Court.

Executive Branch

The Executive Branch is controlled by the President of the United States.

This branch checks Congress’s authority through the power to veto (strike down) legislation.

When Congress presents the President with an approved bill to sign into law, the President can sign it, not sign it, or veto it. Signing it or failing to sign it will result in the bill becoming law. Vetoing the law strikes it down.

Congress can only override a veto with a two-thirds (2/3) majority vote of both the House and Senate.

The President, in turn, may selectively enforce laws that are within the executive branch’s regulatory authority. Selective enforcement has the effect of reducing the impact of a law passed by the legislative branch.

Lastly, the executive branch checks the judicial branch by nominating members to the federal judiciary and through the power to pardon those convicted under certain criminal statutes.

Judicial Branch

The Judicial Branch checks the legislative branch by reviewing laws for constitutionality.

Any law is subject to challenge on the grounds that it violates rights ensured under the US Constitution.

The Judicial Branch also checks all executive orders or actions for constitutionality. In either case, it has the ability to overturn unconstitutional laws and executive orders or actions.

Further, the court can limit the scope of a law by narrowly or broadly interpreting it in a manner that does not infringe upon constitutional rights.

What is “Federalism”?

Federalism regards the separation between a central government and independent governmental sub-units.

In the US system, federalism is the separation between the federal and state governments. The Constitution, under the 10th Amendment, specifically reserves power of self-governance to the states. This includes the authority to pass laws.

For the Federal Government to pass a law, it must be based on a specific power or authority granted under the Constitution.

States pass laws pursuant to their state constitutions and the “police power” inferred from the 10th Amendment. Police power is a state’s authority to legislate for the public safety, health, general welfare, and morals of its citizens.

What is the “Supremacy Clause” and “Preemption”?

Article VI, Section 2 of the US Constitution provides that the Constitution is supreme over all laws and that federal law is supreme over state law. This is known as the “Supremacy Clause“.

Generally,the state and federal governments may regulate the same type of conduct. This is known as “concurrent power”. However, any state law that prevents or interferes with the accomplishment and execution of the full purposes and objectives of Congress is invalid.

Congress can expressly reserve an entire area of law for federal regulation. In such a case, the federal law “preempts” state law.

If Congress does not expressly reserve the area of law for federal regulation, the state may also regulate it.

State appellate courts or the US Supreme Court may review a state law and overturn it if it determines that the law conflicts with or violates a federal law.

Note: Generally the state law can be more restrictive than the federal securities law.

Example: The Federal Government regulates the immigration process. It expressly preempts states regulating this area of law. The Federal Government also regulates the purchase and sale of securities. States are not preempted from regulating the purchase or sale of securities, but a state law may not conflict with or prohibit the accomplishment of federal law.

What is the “Full Faith and Credit Clause”?

Article IV, Section 1 states, “Full faith and credit shall be given in each state to the public Acts, Records, and judicial proceedings of every other state.”

Example: State A issues a warrant for the arrest of Jane Smith. If the arrest warrant is transferred to State B for execution, State B may not intentionally fail to recognize the validity of the State A’s warrant.

Restated, Article IV requires that each state recognize the laws of every other state. The only exception to this rule concerns laws that violate the public policy of another state. In such case, a state may refuse to recognize the legality of the foreign law or legal agreement.

Example: State A grants marriage licenses and performs marriages for same-sex couples. State B must recognize these marriages as valid. State B may attempt to argue that recognizing the marriages violates public policy. This argument, however, has generally been rejected by the US Supreme Court.

What is the “Privileges and Immunities Clause”?

Article IV, Section 2 states that, “Citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.” This is known as the “Privileges and Immunities Clause“.

This clause seeks to avoid individuals gaining an advantage or being discriminated against by a state government simply because of the person’s state or residency.

States may discriminate against members of other states in favor of its residents if there is a “substantial justification”. Substantial is a floating standard that may be subject to challenge by a court.

Note: Try to think about the methods that a state could treat members of another state differently, such as through voting rights, ownership of property, taxation, etc.

Example: State A cannot charge businesses organized in State B a higher rate of sales taxation on sales carried out in State A. This would be an unconstitutional privilege in favor of members of State A.